Mediation FAQ's

Mediation is a process in which a professional, impartial third party, trained in facilitation and negotiation techniques, helps the parties in dispute to reach a mutually acceptable solution.

The Mediator assists and guides the parties towards their own solution by helping them to define the important issues and to understand each other’s interests. The Mediator works to defuse hostile attitudes, remedy miscommunications and to soften or eliminate extreme negotiating positions.

Through the Mediator, the parties assess weaknesses in their own case and recognise potential strengths of the other side. Significantly, the Mediator facilitates the exploration of creative and innovative solutions that the parties, caught up in adversarial negotiation, might otherwise never contemplate. The emphasis is on fashioning a solution satisfactory to all parties to the dispute.

The Mediator’s role is impartial and non-directive.

• Less Adversarial:
  Mediation is an interest-based process based on consensus and collaborative agreement.
• Lower Cost:
  Both in monetary and personal terms, mediation is inexpensive compared to rights-based interventions.
• Preservation of Working Relationships:
  Mediation works towards long-term solutions for the disputing parties, placing significant emphasis on how they will interact in the future.
• Creative Solutions:
  Mediation allows for creative solutions which may not be available in rights-based processes.
• Protection of Privacy:
  Mediation is a confidential process. All parties to the mediation, including the Mediator sign a confidentiality agreement before engaging in the substantive discussions.
• Swift Settlement:
  Mediation can be scheduled soon after a dispute arises and following the pre-mediation meetings, can often be concluded in a single day.
• Preservation of Options:
  Engagement in a mediated intervention does not preclude participation in a different dispute resolution process.
• Low Risk:
  Settlement potential is high and there are benefits to participating in the process for all.

The Mediation model is dependent on the nature of the conflict but generally includes the following stages:

Preparatory Stage

Generally the Mediator will meet with each principal party/stakeholder in a pre-mediation meeting. In commercial mediations, each party will have developed a risk analysis outlining best case and worst case scenarios. The purpose of the pre-mediation meeting:

• To explain the mediation process and agree on parameters
• To help each party to identify their issues
• To address any concerns or issues the party may have regarding the process
• To identify the most appropriate approach for the joint session/plenary session stage.

Joint-Session/Plenary Session

The duration and structure of the joint/plenary session depends on the nature of the dispute. Commercial mediations tend to shuttle negotiation where the Mediator works separately with each party in developing and assessing their cases. In workplace mediations there is a greater emphasis on face-to-face negotiation, especially where the parties will need to engage in a continuing work relationship.

The general structure is as follows:

1. Opening Statements
2. Exploratory Phase
3. Substantive Negotiations: Direct and Indirect Negotiations
4. Setting the Agenda
5. Negotiation of Settlement
6. Writing the Agreement

Yes. In the event that legal advice may be required, where there are Industrial Relations issues or if you feel the need for a support person, your lawyer, HR representative, Union rep or designated support person may be present by prior arrangement.

When a mutually acceptable resolution is reached, the parties, with the help of the Mediator, draft an agreement detailing the terms of the settlement. Where all parties agree to its terms, the parties sign and execute the written settlement. The signed agreement is binding.

The mediation process improves communication, narrows outstanding issues, defuses emotions and defines areas of agreement, leading to successful resolutions in 80% of cases (Labour Relations Commission, 2003).

Where the parties to a mediation do not reach full settlement, parts of the disputes may be resolved, leaving fewer and less extreme differences to be addressed in a rights-based process. As the mediation process is confidential and without prejudice, information surfaced during the mediation cannot be relied on or referred to in subsequent litigation.

Engagement in a mediated intervention does not preclude participation in a different dispute resolution process, unless agreed as part of a Mediation Settlement.